Is Being a Webmaster for Controversial Islamic Websites A Crime?A USA Patriot Act Prosecution Raises the Issue

After the September 11 attacks, a group of Muslim students held a candlelight vigil in the college town of Moscow, Idaho, and condemned the attacks. The leader of that vigil was a Saudi computer science doctoral student, Sami Omar al-Hussayen.

Now, ironically, Hussayen is on trial for what prosecutors claim is a terrorism-related offense. He is alleged to have served as a webmaster and discussion group moderator for several Islamic groups that have published content on their web sites advocating jihad and praising suicide bombings.

The Department of Justice claims that Hussayen, by helping to maintain these sites, has violated the USA Patriot Act's "expert advice" provision -- which makes it a crime to provide "expert advice or assistance" to groups that meet the Act's definition of "terrorist".

(Hussayen has also been indicted for alleged visa fraud and allegedly providing funds to Islamic groups. But in this column, I will address only the charges based on his alleged hosting of others' content.)

The case is a key test of the limits and constitutionality of this part of the USA Patriot Act ("Patriot Act"). Although the facts of the case are still emerging at trial, to the extent that the government's case suggests that web hosting alone can constitute "expert advice," the prosecution has troubling implications for free speech.

The Genesis of the "Expert Advice" Provision

Under a federal criminal statute, a person "within the United States or subject to the jurisdiction of the United States" who "knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so" may prosecuted for "conspiracy to support terrorism," and imprisoned for up to 15 years

In October 2001, Congress enacted the Patriot Act. The Act expanded the definition of "conspiracy to support terrorism" to also encompass "expert advice or assistance." The idea seemed to be to punish those who, for example, knowingly taught terrorists how to make bombs.

But the law's language was far broader -- failing to specify what kinds of advice or assistance might be criminal. As commentators have noted, someone who works as an electrician or repairperson for a group that advocates terrorism could theoretically be committing a crime under the USA Patriot Act.

In addition, there is no First Amendment exception -- which means that even when assistance counts as free speech, or free association, it still may fall within the Act. It remains to be seen how much of a First Amendment exception courts will infer.

In a California case, Humanitarian Law Project v. Ashcroft, federal district judge Audrey Collins struck down the "expert assistance" provision on the ground that it was unconstitutionally void for vagueness as applied to two humanitarian groups that provide assistance to nonviolent arms of terrorist organizations in Turkey and Sri Lanka.. She concluded that the phrase "expert advice or assistance" is not "sufficiently clear so as to allow persons of ordinary intelligence a reasonable opportunity to know what is prohibited" -- as the Constitution requires.

But it is not yet clear if courts will use the same reasoning in other "as applied" cases with less appealing plaintiffs than humanitarian groups.

The Specific Charges In Hussayen's Case

That brings us to Hussayen's case. In the indictment, the government charged that he provided "computer advice and assistance, communications facilities, and financial instruments and services that assisted in the creation and maintenance of Internet Web sites and other Internet mediums intended to recruit and raise funds for violent jihad, particularly in Palestine and Chechnya."

It further alleges that Hussayen knew and intended that his computer services and expertise would be used to recruit, and raise funds for, global jihad , and that he conspired to conceal the nature of his terrorist support. .

More specifically, Hussayen is accused of creating -- and, apparently, occasionally moderating -- more than a dozen websites with links to groups that praised suicide bombings in Chechnya and in Israel.

The government's case seems to rest not on Hussayan's postings but the messages and postings of others. And it appears that he worked not with a terrorist group, but alone, on a volunteer basis, in the den of his apartment. Moreover, according to Hussayen's lawyers, these sites also included viewpoints that criticized jihad as well. Thus, they may have been more "marketplace of ideas" -- the First Amendment's ideal -- than terrorist platform.

Hussayen is also accused of moderating an international email discussion group. In February 2003, the group posted an appeal for Muslims in the U.S. military to supply information about American forces and facilities in the Middle East that could be selected as targets for acts of terrorism.

It also appears that his participation on the sites and the email group was intermittent. On one site, he posted only 74 of the 3,579 messages posted from between its founding in January 2000, to the last time it was checked on September 10, 2003. On another, according to his attorneys, he acted as moderator just 17 times -- all but one of those in June and July 2000.

Some of the material Hussayen posted is certainly objectionable. On April 15, 2001, the government charges, Hussayen posted four fatwas from Saudi sheiks extolling suicide martyrdom attacks in Chechnya, Israel and elsewhere. But Hussayen's lawyers question if he even read what he was uploading; posting to a website is typically a pretty automatic, mechanical job.

Furthermore, even this material is probably protected by current First Amendment doctrine. Courts may amend that doctrine in the age of the current "war on terrorism," however -- as columns for this site by Sanford Levinson and by Julie Hilden have discussed.

But so far, courts have not altered traditional doctrine. And that creates an important issue as to whether defendants such as Hussayen have the degree of notice that constitutional due process doctrine requires before such acts can be deemed criminal.

The Serious First Amendment and Due Process Issues the Case Raises

Of course, Hussayen's own case is neither the most, nor the least, sympathetic possible. The act of posting fatwas -- in essence, calls for murder -- is deeply morally troubling, to say the least.

But this case raises serious constitutional and statutory issues.

First, the statutory issue: How "expert" were Hussayen's moderating and posting skills anyway -- in an era when many teens have the same skills? Did the Congresspersons who tried to target bomb teachers really want to reach chat room moderators too?

Second, the First Amendment/due process issues: Could Hussayen plausibly have thought, based on First Amendment doctrine, that he was posting First Amendment-protected speech?

If not, criminalizing his activity is not only a First Amendment violation, but a due process violation too. The Constitution guarantees to us all that we must have prior notice, through statutes or regulations judicial decisions or Executive Orders, before our actions can be deemed criminal.

The issues go far beyond the case itself. What about the chilling effect on others who are posting, or simply allowing on their forums, controversial ideas far short of an actual fatwa? What about the chilling effect on those who want to be moderators or posters, but know they will not be able to scrutinize everything that appears on their email lists, or everything they upload?

Finally, isn't it better that someone moderates controversial discussion groups or websites, than if no one does? Without moderators, postings can still be made automatically. So moderators are more likely to stop truly terroristic postings, than to post ones that could not be posted otherwise. But now, who will have the courage to be a moderator for an Islamic website?

Note from Ed.: Hussayan's attorneys include David Nevin; the US Attorneys on the case include Kim Lindquist and Todd Hinnon. For more information on these attorneys and firms, click links to go to the West Legal Directory.

Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology.